Citation Nr: 1230119
Decision Date: 08/31/12 Archive Date: 09/05/12
DOCKET NO. 10-08 711 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut
THE ISSUE
Entitlement to an initial increased rating for service-connected Rosai Dorfman disease, sinus histiocytosis with enlarged lymph nodes, rated as 100 percent disabling from November 12, 2006, to November 30, 2009, and as noncompensable from December 1, 2009, forward.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S.K.C. Boyce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1999 to February 2004.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. In May 2007, the RO awarded service connection for Rosai Dorfman disease, sinus histiocytosis with enlarged lymph nodes, and assigned a noncompensable rating, effective from November 12, 2006. The Veteran submitted a timely notice of disagreement in February 2008. In July 2008, the RO increased the Veteran's rating to 100 percent, effective from November 12, 2006. Within one year of that determination, the Veteran was afforded a VA examination in January 2009. See 38 C.F.R. § 3.156(b). In September 2009, the RO reduced the rating assigned for the Veteran's disability to noncompensable, effective from December 1, 2009. The Veteran perfected an appeal of this determination.
The Veteran testified at a hearing via video-conference before the undersigned Veterans Law Judge in June 2012.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.
Service connection was initially granted for Rosai Dorfman disease, sinus histiocytosis with enlarged lymph nodes in a May 2007 rating decision, and an initial disability rating of 100 percent was assigned in a July 2008 rating decision, by analogy to Diagnostic Code 7709, for Hodgkin's disease. 38 C.F.R. § 4.117 (2011).
Diagnostic Code 7709 provides that following the cessation of surgical, radiation, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. At that time, any change in evaluation upon that or any other examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the regulation directs VA to rate the residuals of the active disease. Id.
The Veteran was provided with VA examination with a VA physician's assistant in January 2009, a VA physician specializing in internal and occupational and environmental medicine in July 2009, and a VA nurse practitioner in October 2010. The Board finds that she should be provided with an additional VA examination with a specialist. There is no general requirement to obtain a medical opinion from a specialist in order to comply with the duty to assist, Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); however, here, the Veteran should be provided with an examination with a VA hematologist/oncologist because of the rarity of the disease of the complexity involved in determining what manifestations are attributable or in any way related to her disability. Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
Lastly, additional VA treatment records must be obtained before the Board can adjudicate the claim on appeal. At the June 2012 Board hearing, the Veteran stated that she continued to receive treatment at the VA Medical Center (VAMC) in Providence, Rhode Island, and was most recently seen approximately five to six months prior. As the most recent VA treatment records from the Providence VAMC are dated from May 2011, an effort should be made to obtain any additional VA treatment records showing treatment for Rosai Dorfman disease for the Veteran, dated since May 2011, as well as any records dated from January to July 2009. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(3).
Accordingly, the case is REMANDED for the following action:
1. Make arrangements to obtain a complete copy of the Veteran's treatment records for Rosai Dorfman disease from the VA Medical Center in Providence, Rhode Island, dated from January 2009 to July 2009 and from May 2011 forward.
2. Then, after all relevant treatment records have been obtained, schedule the Veteran for a VA examination with a hematologist/oncologist. The claims file and a complete copy of this remand should be reviewed in association with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted.
The examiner should describe the current severity of the Veteran's Rosai Dorfman Disease (sinus histiocytosis with enlarged lymph nodes) and identify all manifestations of her disability.
The Veteran has claimed that the following signs, symptoms, and/or disorders are manifestations of her Rosai Dorfman Disease: enlarged and painful lymph nodes, pulmonary problems, nasal discharge and obstruction, sleep apnea, allergies, brain lesions causing seizures, abnormal motor function, enlarged liver, elevated liver function tests, abdominal pain, headaches, night sweats, fever, anemia, history of nosebleeds, severe weight fluctuation and/or loss, inflammation of the tonsils, loss of voice, hypoxemia, episodes of blindness, and patent foramen ovale.
The examiner should specifically state whether each of the signs, symptoms, and/or disorders listed above are at a manifestations of the Veteran's Rosai Dorfman Disease, and if so, describe their severity.
The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.
3. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered.
4. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
_________________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).